Mr Y and Health Service Executive

Whether the HSE was justified in its decision to refuse the applicant’s request for access to the medical records of his late wife under section 37(1) of the FOI Act

6 March 2020

Background

In a request dated 29 January 2019, the applicant sought access to all of his late wife’s medical records from December 2015 onwards. The HSE dealt with the request by splitting it in two and issuing separate decisions on Hospital records and Community GP records. In both of the original decisions issued by the HSE on 5 March 2019 and 15 March 2019, it relied on sections 37(1) and 37(5) of the FOI Act to refuse access to the records sought. The applicant sought an internal review of both decisions, wherein he argued that he satisfies the criteria in the FOI Act which provides a right of access to records of a deceased individual. The HSE affirmed both of its original decisions to refuse access to the records sought. On 2 October 2019, the applicant sought a review by this Office of the HSE’s decisions.

On 9 December 2019, this Office wrote to the HSE to clarify if it had considered the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the Regulations) which provide for a right of access to the records of deceased persons by certain classes of requester (including spouses) in certain circumstances.

In its response, the HSE stated that it had, indeed, considered the Regulations but had omitted to make any reference to the Regulations in its decision letters due to an oversight. It provided documentary evidence of having considered the Regulations. On 17 January 2020, the HSE wrote to the applicant to explain that it had considered the Regulations before taking the decision to refuse his request.

On 18 February 2020, this Office invited the applicant to make a submission in support of his application for review. He did so on 26 February 2020.

I have now completed my review of both decisions of the HSE in accordance with section 22(2) of the FOI Act. In light of the fact that the parties to the review are the same in both cases and having regard to the nature of the records sought, I have decided to bring these cases to a close by issuing a composite formal, binding decision. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the records concerned.

Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse the applicant’s request for access to his late wife’s medical records under section 37(1) of the FOI Act.

Preliminary Issues

Before explaining my analysis and findings on this review, I would like to offer my condolences to the applicant on the death of his wife. The applicant has stressed at numerous stages during this review that he had concerns about the standard of care and treatment afforded to his wife. He also provided this Office with a copy of a complaint he made to the Hospital outlining serious concerns he has of his wife’s treatment and care. I also note that the applicant and his family have expressed frustration with the HSE’s response to his request for medical records also.

It is important to state at the outset that this Office has no role in examining the actions of the HSE or its staff in the performance of their functions. Our role is confined to reviewing the decision taken by the HSE on the applicant’s FOI request. If the applicant is dissatisfied with the actions of the HSE in connection with its administrative functions, he may wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine his complaints.

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Analysis and Findings

Section 37(1) of the Act provides for the mandatory refusal of a request where the public body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual. Given the nature of the records sought, I accept that the disclosure of the records in this case would involve such a disclosure and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is also subject to the other provisions of section 37.

Section 37(2) provides that section 37(1) does not apply if

(a) the information concerned relates to the requester concerned,

(b) the individual to whom the information relates consents to its disclosure to the requester,

(c) information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals of significant size, is available to the general public,

(d) the information was given to the FOI body concerned by the individual to whom it relates and was informed before doing so that the information belongs to a class of information that would or might be made available to the general public, or

(e) the disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

I am satisfied that none of the circumstances set out in section 37(2) arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act recognises that there is a public interest in promoting openness and accountability of public bodies in the performance of their functions. On the other hand, however, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

It is important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. Therefore, while I can take account of the applicant’s status as the spouse of the deceased when considering the applicability of the 2016 Regulations mentioned above and have done so below, I cannot do so when considering the applicability of section 37(5)(a).

The information at issue in this case is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not apply.

The 2016 Regulations

Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The Regulations I have mentioned above are the relevant Regulations. Among other things, they provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where

(a) the requester concerned belongs to one or other of the following classes:

(i) a personal representative of the individual acting in due course of administration of

the individual’s estate or any person acting with the consent of a personal

representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his

or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

Under section 48(1) of the Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines. The Minister has produced guidance relating to section 37(8) and the Regulations.

In considering whether the applicant has a right of access to the records sought as the spouse of the deceased, the question the HSE must consider is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The relevant guidance suggests that each case must be judged on its own merit and that the decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. It suggests that in light of the requirement on the decision maker to have regard to "all the circumstances", the factors to be considered include:

the confidentiality of personal information, as set out in section 37(1) of the FOI Act;

whether the deceased would have consented to the release of the records to the requester when living;

whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;

whether release would damage the good name and character of the deceased;

the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death;

the nature of the records to be released. The Guidance says that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour;

any other relevant circumstances that the requester may set out.

It is noteworthy that the Regulations explicitly recognise a public interest in preserving the confidentiality of personal information. The HSE argued that having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing to grant the request. I note that in its letter of 17 January 2020 to the applicant wherein it explained that it had considered the Regulations before taking the decision to refuse his request, it stated that among other things, it took into account the expressed wishes of the deceased in deciding that the public interest would on balance be better served by refusing the request.

Having carefully considered the provisions of the Regulations and the related Guidance, the submissions from both the applicant and the HSE, the evidence presented by the HSE of the expressed wishes of the deceased, and the nature of the records at issue, I am satisfied that in all the circumstances of this particular case, the HSE was justified in finding that the public interest, including the public interest in the confidentiality of personal information would, on balance, be better served by refusing the request.

I find therefore, that the HSE was justified in finding that the applicant does not have a right of access to the records at issue under the Regulations as the spouse of the deceased.

For the sake of completeness, I would like to comment on the applicant’s claim, as set out in his letter of 1 April 2019 to the HSE when applying for an internal review, that he also meets the criteria set out in the Regulations to be deemed to belong to the other classes of individual who have a right of access to the records of a deceased individual, namely

(i) a personal representative of the individual acting in due course of administration of the individual’s estate or any person acting with the consent of a personal representative so acting, and

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function.

The applicant presented no evidence to this Office to support that claim. As such, I have not considered whether or not he has a right of access as a member of either class. If the applicant believes he is a member of either class and that he has a right of access to the records sought, it is open to him to submit a fresh request to the HSE along with any evidence he has to support his claim. The applicant should note however, that even if he is the personal representative of his late wife, he must also be acting in due course of administration of the deceased’s estate for a right of access to exist.

In conclusion, I find that the HSE was justified in refusing the applicant’s request for access to his late wife’s medical records under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case. I find that the HSE was justified in its decision to refuse access to medical records belonging to the applicant’s late wife under section 37(1) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.